Recent sexual assault law

[6-000] Recent sexual assault law on JIRS

The Research and Sentencing Division of the Judicial Commission of NSW publishes summaries of recently enacted criminal legislation, relevant case law and other important sentencing developments on the Recent Law & Announcements page of its online Judicial Information Research System (JIRS). The summaries below may also be accessed on JIRS.

Recent sexual assault cases

Evidence

  • 25/04/2021 — Criminal Procedure Act 1986, s 293 — evidence of complainant’s prior sexual activity or experience — sexual intercourse without consent — judge erred by excluding, under s 293(3), part of appellant’s ERISP concerning complainant’s sexual experience — exception in s 293(4) applied — probative value of evidence outweighed complainant’s distress, humiliation or embarrassment if admitted — Decision Restricted [2021] NSWCCA 51

  • 12/11/2020 — Evidence Act 1995, s 110 — character evidence — appellant convicted of assault and indecent assault of his children — good character raised in defence case and Crown relied on rebuttal evidence — judge correctly directed rebuttal evidence could be used to determine appellant’s character — no requirement to also warn jury not to use character in determining guilt as would have undermined defence case — FB v R [2020] NSWCCA 137

  • 29/10/2020 — Evidence Act 1995, ss 12, 13 — witness competence — 5-year-old child complainant diagnosed with autism spectrum disorder and hearing impairment — judge did not err by finding complainant competent to give unsworn evidence — Witness Intermediary Assessment Report indicated complainant able to give evidence if appropriately questioned — question of reliability separate to competence — Gray v R [2020] NSWCCA 240

  • 25/09/2020 — Evidence Act 1995, s 87 — admissions in furtherance of common purpose — judge erred in approach to s 87 and by admitting representations of third party as admissions — satisfaction of s 87(1)(c) criteria does not render representation admissible at trial without further evidentiary decision — common purpose must be that alleged in those proceedings — Higgins v R [2020] NSWCCA 149

  • 04/08/2020 — Directions — Evidence Act 1995, ss 97, 101 — tendency evidence — context evidence — charged counts on indictment used as tendency evidence — judge did not err by omitting aspects of suggested tendency direction in Criminal Trial Courts Bench Book — suggested Bench Book directions advisory and must be adapted to circumstances of individual case — BRC v R [2020] NSWCCA 176

  • 16/07/2020 — Evidence Act 1995, ss 97, 101 — tendency evidence — judge did not err by admitting evidence that applicant had a tendency to have a sexual interest in young girls and to act on that interest — tendency evidence should not be considered in isolation — unusual case of tendency but offence charged and tendency evidence shared sufficiently common features — Vagg v R [2020] NSWCCA 134

  • 13/03/2020 — Evidence Act 1995, ss 102–104, 110, 112, 192 — irrelevant evidence led during Crown’s cross-examination of appellant concerning his credit and good character — trial miscarried because cross-examination impermissible and prejudicial — further miscarriages of justice resulting from character directions and replaying complainant’s evidence without warnings — IW v R [2019] NSWCCA 311

  • 03/03/2020 — Evidence Act 1995, s 89A — special caution — right to silence exercised by appellant on legal advice — miscarriage of justice because not open to jury to draw adverse inference from exercise of right — onus on Crown to establish appellant’s silence was because he had no innocent explanation — s 89A abrogates common law right to silence — miscarriage caused by Crown undermining good character evidence led at trial — prejudicial to suggest appellant’s work with vulnerable children suspicious — verdict of acquittal ordered — Hogg v R [2019] NSWCCA 323

Sentencing

  • 05/05/2021 — Sentencing — Crimes (Sentencing Procedure) Act 1999, s 21A(2)(g) — historical child sexual offences against three nieces — victim impact statements (VIS) — judge did not err in finding harm disclosed in VIS greater than ordinarily attaches to child sexual offences — finding of substantial harm as an aggravating factor was open — Culbert v R [2021] NSWCCA 38

  • 26/04/2021 — Sentencing — Crimes Act 1900, s 66EA (since amended) — persistent sexual abuse of child — ingredient offences occurred in NZ and NSW — no error in judge’s approach to s 66EA — gravamen of offence reflected in 25 year maximum penalty which provides sentencing yardstick — maximum penalties for ingredient offences in NSW assist only as a guide to objective seriousness — Hillman v R [2021] NSWCCA 43

  • 19/04/2021 — Sentencing — Crimes (Sentencing Procedure) Act 1999, s 53A — aggravated sexual intercourse with cognitively impaired victim — judge did not err in approach to totality — aggregate sentence determined by assessing totality of criminality in all offending — principles concerning accumulation and concurrency do not apply to aggregate sentences — Aryal v R [2021] NSWCCA 2

  • 08/03/2021 — Sentencing — Crimes Act 1900, s 73(2) — sexual intercourse with person under special care aged 17 — judge did not err in assessing objective seriousness of offences as being in mid-range — position of victim within age range of very little significance — foundation for contact based on teacher-student relationship — offences constituted egregious breach of trust — Gale v R [2021] NSWCCA 16

  • 28/01/2021 — Sentencing — Crimes Act 1900, s 67 (rep) — carnal knowledge of girl under 10 — juvenile offender — 16/17 years old — sentence manifestly excessive — applicant need not demonstrate a clear sentencing range by reference to statistics or comparable cases to establish manifest excess — RA v R [2020] NSWCCA 356

  • 01/12/2020 — Sentencing — Crimes Act 1900, ss 63, 71, 78A (all rep) — rape, carnal knowledge of girl aged 10-16, incest — representative counts — predatory sexual offending against sibling over many years in the 1960s/70s — judge did not err by finding offence committed when victim 16 towards top of range for rape — substantial sentence not manifestly excessive — Franklin v R [2019] NSWCCA 325

  • 27/11/2020 — Sentencing — Crimes Act 1900, s 61J(1) — aggravated sexual intercourse without consent — prior intimate relationship between victim and offender cannot mitigate objective seriousness of offence — no error in judge’s approach to sentencing — Bussey v R [2020] NSWCCA 280

  • 24/11/2020 — Sentencing — child sex offences — judge erred by failing to give weight to applicant’s prior good character — necessary to first determine if offender is of good character then consider weight to be given to that factor — Ryan v The Queen (2000) 206 CLR 267 applied — BG v R [2020] NSWCCA 295

  • 29/10/2020 — Sentencing — sexual assault — observations concerning inappropriateness of exchange between sentencing judge and counsel about appropriate sentence — judge’s role to determine sentence — JIRS statistics not a starting point for calculating sentence — Barbaro v The Queen discussed — Tatur v R [2020] NSWCCA 255

  • 23/10/2020 — Sentencing — Criminal Code (Cth), ss 474.19(1)(a)(iv), 474.27(1) — cybersex offences — 14-year-old victim — judge failed to give discount for utilitarian value of guilty pleas for Cth offences — judge correctly assessed objective gravity of offences — primacy of general deterrence and denunciation for offences involving procuring children for child abuse material offences using internet — Small v R [2020] NSWCCA 216

  • 13/10/2020 — Sentencing — Crimes Act 1900, ss 61HA (now s 61HE), 61J — aggravated sexual intercourse without consent — judge did not err by finding beyond reasonable doubt applicant reckless as to consent — not inconsistent to also find reasonably possible applicant believed victim consenting — no requirement to sentence according to state of mind proffered by Crown but according to what evidence proves — Saffin v R [2020] NSWCCA 246

  • 29/07/2020 — Crown appeal — Crimes Act 1900, s 91H(2) — produce child abuse material — online chats between offenders describing sexual acts involving their children — judge erred by assessing offences as just below mid-range — R v Hutchinson [2018] NSWCCA 152 factors relevant considerations — relationship of children to offenders and circumstances in which material produced also relevant — R v LS; R v MH [2020] NSWCCA 148

  • 16/07/2020 — Sentencing — Criminal Code (Cth), ss 474.27, 474.19(1) — cybersex offences against young girls — 18 year old offender — presumption children suffer harm because of prohibited sexual activities applies to cybersex offences — Adamson v R (2015) 47 VR 268 applied — sentence failed to reflect judge’s finding that less weight given to specific and general deterrence because of applicant’s immaturity and mental condition — judge erred by relying on dissimilar decisions to identify sentencing range — Kannis v R [2020] NSWCCA 79

  • 18/06/2020 — Sentencing — Crimes (Sentencing Procedure) Act 1999, ss 31, 32, 33(2) — judge erred by taking Form 1 offences into account across multiple offences — offences on a Form 1 can only be taken into account on one principal offence — parties must ensure principal offence and offences to be taken into account are clearly identified — LS v R [2020] NSWCCA 27

  • 15/05/2020 — Appeals — re-sentencing — child sexual assault — 72-year-old applicant with pre-existing medical conditions — sentence manifestly excessive given exceptional nature of case — potential impact of COVID-19 pandemic considered on re-sentence — Scott v R [2020] NSWCCA 81

  • 08/05/2020 — Crown Appeal — Crimes Act 1900, s 66A(1) — child sexual assault — Crimes (Sentencing Procedure) Act, ss 17B, 17C, 17D, 89 — judge erred by imposing CCO without first obtaining a sentence assessment report — proposed work condition not available — sentence manifestly inadequate — residual discretion exercised — offender aged 76 vulnerable to COVID-19 due to existing health issues — RC v R; R v RC [2020] NSWCCA 76

  • 25/03/2020 — Sentencing — Criminal Law Consolidation Act 1935 (SA), s 50 — persistent sexual exploitation of a child — sentencing judge erred by not sentencing applicant on facts most favourable to him as required by Chiro v The Queen (2017) 260 CLR 425 — Statutes Amendment (Attorney-General’s Portfolio) (No 2) Act 2017 (SA), s 9(1) not engaged — judge did not make findings about acts of sexual exploitation he found proved — facts on sentence adverse to offender must be proved beyond reasonable doubt — sentence remarks should make findings clear — KMC v DPP (SA) [2020] HCA 6

  • 03/06/2020 — Sentencing — Crimes (Sentencing Procedure) Act 1999, s 22 — guilty plea discounts — Criminal Procedure Act 1986, s 166 — procedures for back-up charges —approach to determining sentence where indictable offence dealt with summarily — judge did not err by indicating sentence higher than jurisdictional limit for related offence before applying discount for plea —jurisdictional limit does not equate to maximum penalty — R v Doan (2000) 50 NSWLR 115 applied— Park v R [2020] NSWCCA 90

  • 29/05/2020 — Sentencing — historical child sexual offences — sentence not manifestly excessive notwithstanding strong subjective case — evidence relating to COVID-19 pandemic not fresh evidence and not admissible to support manifest excess ground — risks of COVID-19 in prison system moderated by controls introduced by Corrective Services — Cabezuela v R [2020] NSWCCA 107

  • 20/05/2020 — Sentencing — practice of referring to sentence reasons as “remarks on sentence” — phrase is not outdated and has contemporary legislative status — observations to opposite effect in You v R [2020] NSWCCA 71 questioned — Maxwell v R [2020] NSWCCA 94

  • 05/05/2020 — Sentencing — historical child sexual assault — Crimes (Sentencing Procedure) Act 1999, s 25AA — provision abolishes requirement to sentence in accordance with sentencing principles at time of offence — observations concerning whether s 25AA applies following successful sentence appeal if did not apply to original proceedings — no error in judge’s approach to determining appropriate non-parole period — no requirement that non-parole period be fixed at 50% of head sentence — Corliss v R [2020] NSWCCA 65

  • 01/05/2020 — Crimes (Sentencing Procedure) Act 1999, ss 21A(2)(k), (l), 22 — aggravating factors — multiple child sexual assaults — no error in judge finding offences aggravated because victims vulnerable and under applicant’s authority — judge did not breach principle in The Queen v De Simoni or double-count — uniform guilty plea discount appropriate given limited plea negotiation information — Davies v R [2019] NSWCCA 45

  • 30/04/2020 — Sentencing — Crown appeal — sexual assault — community correction order imposed — Crimes (Sentencing Procedure) Act 1999, ss 21A(5AA), 21A(2)(k) — judge erred by taking into account self-induced intoxication as mitigating factor (s  21A(5AA)) — judge did not err by not taking into account abuse of trust (s 21A(2)(k)) — residual discretion exercised — appeal dismissed — DPP (NSW) v Burton [2020] NSWCCA 54

  • 31/03/2020 — Sentencing — Criminal Code (Cth), ss 272.9(1), 272.11(1), 272.14(1) — child sex offences outside Australia — judge did not err in assessment of objective seriousness — factors identified in DPP (Cth) v Beattie [2017] NSWCCA 301 relevant to assessing objective seriousness of offences against ss 272.11 and 272.14 — Baden v R [2020] NSWCCA 23

  • 10/03/2020 — Sentencing — sexual assault offences — sentencing judge did not err by explaining cunnilingus was sexual assault to non-Australian offender — judge merely discharging duty to provide reasons and explaining scope of definition of sexual intercourse — observations concerning differing manners of giving reasons — Rahman v R [2020] NSWCCA 13

  • 28/01/2020 —Sentencing — Crimes Act 1900, ss 66A, 66B, 66C — child sexual assault — sentence imposed was manifestly excessive — approach to comparable cases — need to consider particular facts in cases underlying statistics — analysis of cases relied on during appeal — Facer (a pseudonym) v R [2019] NSWCCA 180

  • 24/01/2020 — Crimes Act 1900, s 323(a) — persuade witness to withhold true evidence — applicant acquitted of sexual assault but convicted of persuading complainant not to give true evidence of sexual assault — verdicts not unreasonable or inconsistent — sentencing — judge did not err by failing to take into account absence of threats of violence when assessing objective seriousness — Vasilevski v R [2019] NSWCCA 277

  • 17/01/2020 — Sentencing — Crimes Act 1900, ss 81, 61E(1A), 61M(1) (all repealed), 66C — historical child sexual offences — Crimes (Sentencing Procedure) Act 1999, s 25AA(1) — considering current sentencing practices and the importance of expressly stating s 25AA(1) has been applied — four prosecutions over 25 years — judge erred by giving delay and rehabilitation a “dominant role” on sentence — totality — sentence failed to reflect seriousness of whole conduct — R v Cattell [2019] NSWCCA 297

Offences

  • 31/08/2020 — Offences — Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), s 13(1) — Child Protection (Offenders Registration) Act 2000, ss 3A, 17(1) — contravening child protection prohibition orders — orders invalid as applicant not a “registrable person” within s 3A — appropriate to remit matter to District Court for sentence — Watson v R [2020] NSWCCA 215

  • 30/07/2020 — Offences — Criminal Law Consolidation Act 1935 (SA), s 50 (similar to s 66EA Crimes Act 1900 (NSW)) — maintain unlawful sexual relationship with child — stated case — elements of offence — meaning of “relationship” — duration, nature and continuity of interactions to be considered — relationship elements must comprise more than alleged unlawful sexual acts alone — R v Mann [2020] SASCFC 69

  • 30/07/2020 — Offences — Criminal Law Consolidation Act 1935 (SA), s 50 — maintain unlawful sexual relationship with child (similar to previous and current Crimes Act 1900, s 66EA) — elements — relationship a separate element of offence — actus reus of offence is maintenance of relationship during which adult engages in two or more unlawful sexual acts with child — relationship in this case familial — R v M, DV [2019] SASCFC 59

  • 15/05/2020 — Offences — Crimes Act 1900, ss  61L (rep) & 61I — sexual assault — verdicts not unreasonable — observations concerning cross-examination of witnesses, including complainant, about behaviour during and after assaults — futile to assess complainants’ behaviour by reference to stereotypical expectations — Maughan v R [2020] NSWCCA 51

Procedure

  • 25/04/2021 — Criminal Procedure Act 1986, s 293 — evidence of complainant’s prior sexual activity or experience — sexual intercourse without consent — judge erred by excluding, under s 293(3), part of appellant’s ERISP concerning complainant’s sexual experience — exception in s 293(4) applied — probative value of evidence outweighed complainant’s distress, humiliation or embarrassment if admitted — Decision Restricted [2021] NSWCCA 51

  • 24/12/2020 — Procedure — witness intermediaries — Criminal Procedure Act 1986, Sch 2, Pt 29, Div 3, cl 89(5) — judge erred by declining to revoke intermediary’s appointment — intermediary assisted witness in professional capacity before appointment — cl 89(5)(b) does not require subjective inquiry into intermediary’s impartiality and not limited to direct therapeutic assistance — court retains discretion to revoke appointment — SC v R [2020] NSWCCA 314

  • 15/07/2020 — [RESTRICTED] Procedure — Criminal Procedure Act 1986 , s 293 — prohibition on cross-examination concerning prior sexual experience or activity — judge erred by refusing a voir dire to determine whether exclusions in s 293(3) or exceptions in s 293(4) applied — admissibility of evidence to be determined by ordinary evidentiary principles — Decision Restricted [2020] NSWCCA 115

  • 31/07/2020 — Procedure — Criminal Procedure Act 1986, s 293 — prohibition on questioning complainant about prior sexual activity or experience — judge correct to refuse stay application — judge also correct to conclude s 293 extends to evidence of false complaint — M v R (1993) 67 A Crim R 549 correctly decided — Jackmain (a pseudonym) v R [2020] NSWCCA 150

  • 01/06/2020 — Procedure — Crimes (High Risk Offenders) Act 2006, s 13(1) — revocation of extended supervision order (ESO) — no serious offences committed in 19 years since ESO imposed — no high risk of sexual offending — impact of ESO and incarceration for relatively minor breaches adversely affecting prospects of rehabilitation — State of NSW v Carr [2020] NSWSC 643

  • 13/05/2020 — Procedure — prosecution duty of disclosure — duty satisfied by entirety of electronic material seized from applicant’s phone being made available to defence — prosecution not required to draw potentially unfavourable or exculpatory documents from the electronic material to the defence’s attention — no miscarriage of justice established — Edwards v R [2020] NSWCCA 57

  • 30/04/2020 — Procedure — Law Enforcement (Powers and Responsibilities) Act 2002, ss  48, 65 — search warrants — issuing officer’s obligations to record basis for granting warrant — warrant invalid — efficiency considerations do not justify police practice of presenting applications which presuppose outcome — Doyle v Commissioner of Police [2020] NSWCA 11

  • 19/02/2020 — Procedure — joint trials — child sexual assault offences — no real injustice caused by appellant being jointly tried with co-accused — no unacceptable risk of unfair prejudice to appellant arising from tendency evidence admissible only against co-accused — Crown case against appellant not significantly weaker than that against co-accused — risk of prejudice mitigated by judge’s directions — DR v R [2019] NSWCCA 320

  • 31/01/2020 — Procedure — sexual assault of child under 10 — Criminal Procedure Act 1986, s 133 — warnings a judge should consider in judge alone trials — Evidence Act 1995, ss 165, 165A — warnings concerning unreliable evidence and children’s evidence — judge did not err by taking warning ordinarily given to jury about reliability of complainant’s evidence into account — no miscarriage of justice — GBB v R [2019] NSWCCA 296

Sexual Assault Communications Privilege

  • 23/07/2020 — Procedure — Criminal Procedure Act 1986, ss 299, 299C, 299D — sexual assault communications privilege — judge erred by granting leave to issue subpoena without considering legislative requirements — R v Bonanno; ex parte Protected Confider [2020] NSWCCA 156

Appeals

  • 02/02/2021 — Crown appeals — sexual assaults committed by teacher-mentor on student — judge erred in assessing objective seriousness of offences as bottom of range — role of intermediate appellate court — cannot increase sentence unless manifest inadequacy established even where patent error found — discussion of DPP (NSW) v Burton [2020] NSWCCA 54 — sentence manifestly inadequate — Manojlovic v R; R v Manojlovic [2020] NSWCCA 315

  • 21/09/2020 — [RESTRICTED] — Criminal Appeal Act 1912, s 5F(3) — Crimes Act 1900, ss 61J, 61H(1) (see now s 61HA) — digital penetration during medical examination — “proper medical purposes” exception — judge erred by finding that to exclude exception Crown must prove sexual gratification was sole purpose of penetration — Decision Restricted [2020] NSWCCA 138

  • 24/08/2020 — Criminal Procedure Act 1986, s 133(2), (3) — trial by judge alone — child sexual assault — sufficiency of reasons — judge erred by failing to address a critical part of defence case — reasons did not explain why evidence of Crown experts preferred over defence experts — re-trial ordered — Toohey v R [2020] NSWCCA 166

  • 20/05/2020 — Conviction appeal — Evidence Act, s 97(1) — tendency evidence — judge’s directions pre-Bauer — judge did not err by directing jury that criminal standard of proof required for tendency evidence — evidence not elevated to essential intermediate fact — no real risk jury improperly used tendency evidence — Jackson v R [2020] NSWCCA 5

  • 17/04/2020 — Appeal — historical child sexual assault — Victorian Court of Appeal majority failed to properly consider whole of evidence when determining conviction appeal — evidence as a whole not capable of excluding a reasonable doubt as to applicant’s guilt — SKA v The Queen (2011) 243 CLR 400 considered — appellate court should only view recordings of evidence in exceptional cases — verdicts unreasonable — acquittals entered — Pell v The Queen [2020] HCA 12

  • 13/03/2020 — Conviction appeal — sexual assault/act of indecency offences against child — applicant convicted of four counts and acquitted of another four counts — verdicts unreasonable as complainant’s lack of credibility affected all counts — jury verdict neither logical nor reasonable — Wheeler v R [2019] NSWCCA 255

  • 24/01/2020 — Conviction appeal — indecent assault on person under 16 — applicant did not give evidence at trial but his record of interview was admitted into evidence — failure of judge to give an Azzopardi direction did not occasion a miscarriage of justice — rational choice of trial counsel not to seek a direction — JPM v R [2019] NSWCCA 301

Directions

  • 30/04/2021 — Directions — Crimes Act 1900, s 61HA (rep), 61HE, 61I — consent — sexual intercourse without consent knowing complainant not consenting — judge incorrectly applied current consent provision (s 61HE) when predecessor provision (s 61HA) applied — judge misdirected jury in respect of substantial intoxication and complainant’s capacity to consent — comparison of consent provisions in ss 61HE and 61HA — Beattie v R [2020] NSWCCA 334

  • 24/02/2021 — Directions — lies — applicant’s statements in ERISP inconsistent with his evidence at trial — defence counsel did not seek direction on lies — miscarriage of justice occasioned by judge failing to direct jury on lies — Crown’s closing address on lies risked impermissible consciousness of guilt reasoning — despite defence counsel’s forensic decision, judge had overriding obligation to ensure fair trial — DC v R [2019] NSWCCA 234

  • 12/02/2021 — Directions — Evidence Act 1995, s 165B — forensic disadvantage — child sexual assault — 3-year-delay in complaint — no error in judge declining to give forensic disadvantage direction — not unexpected for delay in complaint when offences involve family members and threats made — applicant’s misconduct (threats) relevant to whether direction should be given — Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354

  • 26/11/2020 — Directions — historic sexual assaults — multiple complainants — lies — judge erred by directing certain lies could be considered as consciousness of guilt — those lies not relied on by Crown in that way — good character — judge erred by refusing to admit evidence applicant had no prior convictions — concern for what might occur at a subsequent trial irrelevant — Decision Restricted [2020] NSWCCA 247

  • 06/11/2020 — Directions — sexual assault — Crown case at trial wholly dependent on accepting complainant’s evidence — appellant did not give evidence — Qld Court of Appeal erred by finding judge’s directions regarding appellant’s silence did not cause miscarriage of justice — Azzopardi v The Queen (2001) 205 CLR 50 direction required in almost all cases — GBF v The Queen [2020] HCA 40

  • 24/08/2020 — Directions — child sexual assault — judge’s summing up unfair and unbalanced — summing-up of defence case cursory — caused miscarriage of justice — Evidence Act 1995, ss 60, 66 — complaint evidence — judge erroneously directed jury complaint evidence was independent of other evidence given by complainant — SB v R [2020] NSWCCA 207

  • 17/12/2019 — Directions — onus and standard of proof — sexual offences — appellant did not give evidence at trial but denied offences in police interview — Qld Court of Appeal correct to conclude Liberato direction not required — trial judge’s directions on onus and standard of proof clear and correct — Liberato v The Queen (1985) 159 CLR 507 direction may apply where accused’s version of events not on oath — suggested re-framing of Liberato direction — De Silva v The Queen [2019] HCA 48

Recent sexual assault legislation

  • 26/11/2020 — Stronger Communities Legislation Amendment (Domestic Violence) Act 2020 — amends Criminal Procedure Act 1986 — inserts Div 5, ss 289T–289VA — creates scheme so domestic violence complainants can give evidence by alternative means or arrangements, amongst other things (partly commences on assent and proclamation) — provides for jury warnings when delayed or no complaint (ss 294(3) and 306ZR) — commenced on assent on 25 November 2020 unless otherwise indicated (see s 2, LW 23.11.20). New s 289T provides that the division applies to domestic violence offence proceedings and AVO proceedings where the defendant is charged with a domestic violence offence and the protected person is the alleged victim. If the complainant is a person against whom a prescribed sexual offence is alleged to have been committed by the accused, the division applies in addition to Pt 5 relating to apprehended personal violence orders.

  • 29/10/2020 — Stronger Communities Legislation Amendment (Miscellaneous) Act 2020 — amends Criminal Procedure Act 1986 — creates presumption that offences be heard together if allegedly committed by same person and relied on as tendency and coincidence evidence (s 29A) — inserts directions on standard of proof for tendency and coincidence evidence (s 161A, commences 1 March 2021)

  • 01/10/2020 — Stronger Communities Legislation Amendment (Crimes) Act 2020 — inserts s 316(1A) in Crimes Act 1900 to introduce reasonable excuse for concealment of domestic or sexual violence offences on certain grounds commenced on assent on 28 September 2020 (s 2, LW 28.9.2020)

  • 10/07/2020 — Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) — amends Crimes Act 1914 (Cth) — s 16A(2)(g) amended to provide greater guidance for considerations relevant to guilty plea — s 16(2)(ma) added — requires consideration of whether an offender’s standing in community aided commission of offence — s 16A(2) amendments commence 20 July 2020 — s 20AB amended to add residential treatment orders as sentencing alternative for intellectually disabled offenders — inserts provisions relevant to sentences for Cth child sexual abuse offences — new ss 16AAA, 16AAB and 16AAC introduce mandatory minimum sentences for certain child sexual abuse offences — s 19 amended to add presumption of accumulation of sentences — s 20 now requires particular conditions for Cth child sexual abuse offenders released on recognizance — amends Criminal Code (Cth) — inserts new aggravated offences for child sexual abuse, grooming offences and offences related to providing electronic services to facilitate dealings with online child abuse material — increases maximum penalties for certain Cth child sex offences — unless indicated otherwise commenced 23 June 2020 (s 2)

  • 10/07/2020 — Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) — amends Crimes Act 1914 — new s 15AAA introduces presumption against bail for Cth child sex offences — s  15YM amended to provide that recording of interview with vulnerable witness admissible as evidence-in-chief — new s 15YHA prohibits cross-examination of vulnerable witness at committal — ss 19AA, 19APB, 19AQ, 19AR, 19AS amended as to procedures related to revocation of parole order or licence — s 19AU(3) amended to insert community safety as factor relevant to revocation of federal offender’s parole — commenced on 23 June or 20 July 2020 as indicated (s 2)

  • 26/06/2020 — Evidence Amendment (Tendency and Coincidence) Act 2020 — amends Evidence Act 1995, Pt 3.6 — new ss 94(4) and (5) clarify matters that may or may not be taken into account when determining admissibility of tendency and coincidence evidence — adds s 97A which sets out rules for admissibility of tendency evidence in proceedings for child sexual offences — inserts s 98(1A) to extend coincidence rule to evidence of witnesses claiming to be victims of accused — amends test in s 101(2) to one where evidence inadmissible unless its probative value outweighs danger of unfair prejudice — commenced 1 July 2020 (s 2, LW 10.6.20)

  • ·26/06/2020 — Crimes Amendment (Special Care Offences) Act 2020 — amends Crimes Act 1900 special care sexual offences involving 16-and 17-year-old young people — creates new special care categories in ss 73(3)(f), (g) and 73A(3)(f), (g) — amends ss 73 and 73A by adding ss 73(3)(b1), (3)(c) and 73A(3)(b1), (3)(c), (3)(f) so that for certain special care categories there is a requirement that victim be “under the authority” of offender — inserts new s 78(1) to include defence for young people for some incest offences — commenced on assent on 23 June 2020 (s 2, LW 22.06.2020)

  • 24/03/2020 — Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth) — amends Criminal Code (Cth) — Sch 1 inserts Div 273B “Protection of children” — creates offences related to Commonwealth officers who fail to protect children from, or report, child sexual abuse — commenced on proclamation on 20 March 2020 (s 2) — amends Crimes Act 1914 (Cth), s 15Y — extends protections to vulnerable persons in Crimes Act, Pt IAD to proceedings for offences in Div 273B

Note:

See JIRS Recent Law for summaries of all items in this list. Content on JIRS is only available to NSW judicial officers and other JIRS subscribers.

[6-020] Older sexual assault cases and legislation

Cases

20/11/2019 — Sentencing — Criminal Code(Cth), ss 474.19(1) (rep), 474.27A(1) — Crimes Act 1900, s 91H(2) — possess/transmit/solicit child pornography/child abuse material and transmit indecent communication to child — general deterrence a primary consideration for offences involving sexual predatory conduct towards children — sentence not manifestly excessive — Martin v R [2019] NSWCCA 197

11/11/2019 — Procedure — Crimes Act 1900, s 61I— sexual assault — no miscarriage of justice caused by prosecutor’s cross-examination of accused about evidence not previously put to Crown witnesses — prosecutors should rarely use rule in Browne v Dunn to attack credit of accused — Hofer v R [2019] NSWCCA 244

07/11/2019 — Sentencing — Crimes (Sentencing Procedure) Act1999, s 25AA — historical child sexual offences — Crimes Act 1900, s 81 (rep) — indecent assault on male — s 25AA requires consideration of current sentencing practices — factors such as breadth of offending, maximum penalty and lack of standard non-parole period relevant considerations — O’Sullivan v R [2019] NSWCCA 261

04/11/2019 — Directions — Evidence Act 1995, s 165B — delay in prosecution — historical child sexual assault — judge did not err by failing to consider specific directions concerning delay to be given during trial — directions regarding prejudicial delay must conform with s 165B not principles in Longman v The Queen(1989) 168 CLR 79 — no error to refuse to permanently stay proceedings — Decision Restricted [2019] NSWCCA 214

08/10/2019 — Sentencing — Crimes Act1900, ss 61HA, 61J(1), 61M(1) (rep) — aggravated sexual intercourse without consent — aggravated indecent assault — victim with serious physical disability — no error in assessment of objective seriousness of offences as “slightly above mid-range” — absence of aggravating factors does not diminish gravity of offences — no hierarchy of sexual offences ranked by type of penetration or sexual connection — Tindall v R [2019] NSWCCA 136

04/10/2019 — Sentencing — Crimes Act1900, ss 61M(2) (rep), 66A — child sexual assault — juvenile offenders — judge erred by failing to take into account applicant’s age and mental condition when determining objective seriousness of offence — both relevant to assessment of objective seriousness when causative of offending — limited sentencing options available following commencement of community-based sentencing options on 24 September 2018 — BM v R [2019] NSWCCA 223

02/10/2019 — Conviction appeal — Crimes Act 1900, Pt 3, Div 10 — sexual offences — counsel’s failure to lead evidence of appellant’s good character caused substantial miscarriage of justice — issue of character notoriously important in serious sexual assault cases involving word on word factual disputes — likely that failure to lead evidence of character affected trial outcome particularly since Crown case not strong — verdict of acquittal entered — Xu v R [2019] NSWCCA 178

20/08/2019 — Sentencing — Crimes Act 1900, s 61J — aggravated sexual assault — judge erred by failing to give reasons concerning application of totality principle — sentencing judges required to provide insight into determination in reasons — offenders and community entitled to know how and why a sentence of imprisonment has been assessed — no lesser sentence warranted — Porter v R [2019] NSWCCA 117

06/08/2019 — Sentencing — Crimes Act1900, s 66A(2) — child sexual assault — no error in sentencing judge’s finding that offences “within the worst category” — judge undertaking task of placing offences on scale of objective gravity “near the top of the range” — sentence not manifestly excessive — legislative history of s 66A(2) a relevant consideration — sentences must be commensurate with offending and reflect community revulsion for such offences — Gibbons (a pseudonym) v R [2019] NSWCCA 150

19/08/2019 — Sentencing — Crown appeal — Crimes Act 1900, s 66A(2) — aggravated sexual intercourse — 11 month old victim — respondent serving sentence for manslaughter of victim at time of s 66A offence — judge misapplied totality principle — inappropriate to characterise criminality of s 66A(2) offence as substantially reflected in manslaughter offence — R v Toohey [2019] NSWCCA 182

30/07/2019 — Directions — sexual assault — consent — judge erred by directing jury that accused could be convicted if they were satisfied beyond reasonable doubt he did not care whether or not complainant consented — directions reversed onus of proof — suggested jury was to decide between two competing versions not determine lack of consent beyond reasonable doubt — Yu v R [2018] NSWCCA 201

24/07/2019 — Sentencing — Crimes Act1900, ss 66EB(2), 66EB(2A) — procure child for unlawful sexual activity — travel to meet child under 14 following grooming — judge erred in degree of accumulation allowed between sentences — no error deciding not to impose wholly concurrent sentences but degree of accumulation excessive — no double counting of “grooming” which was an element of s 66EB(2A) offence but not s 66EB(2) offence — Milliner v R [2019] NSWCCA 127

30/06/2019 — Conviction appeal — sexual offences committed by 11- to 13-year-old — evidence in Crown case did not rebut presumption of doli incapax — no evidence of applicant’s maturity or intelligence — circumstances of offending incapable of rebutting presumption — Evidence Act1995, ss 97, 101 — tendency evidence correctly admitted — common features of each incident sufficiently specific and of significant probative value — directions to jury about use of tendency evidence ameliorated its prejudicial effect — BC v R [2019] NSWCCA 111

26/06/2019 — Sentencing — Criminal Code (Cth), ss 272.14, 474.19, 474.26, 474.27A — procure child to engage in sexual activity outside Australia — use carriage service to transmit indecent communication to child/procure child for sexual activity — general deterrence important for such offences — very lengthy term of imprisonment not necessarily appropriate — sentence excessive given applicant not procuring for sexual activity with himself, no masking of identity, and no inducement or arrangements for activity — comparisons with other cases often difficult, if not meaningless, for such offences — McNiece v R [2019] VSCA 78

24/06/2019 — Sentencing — Crimes Act 1900, s 61J(1) — aggravated sexual intercourse without consent — judge did not err in approach to assessing objective seriousness of offences — incorrect to characterise Crown written sentence submissions that offences in low-range of objective seriousness as a concession — McClelland v R [2019] NSWCCA 59

03/06/2019 — Sentencing — Criminal Code (Cth), s 474.19(1) — animated child pornography in CETS Category 6 — not a “victimless crime” — not substantially different from other categories — material normalises exploitative sexual activity of children — judge did not err by considering applicant’s employment as AFP officer an aggravating factor — R v Edwards [2019] QCA 15

24/05/2019 — Evidence Act 1995, ss 55, 137 — Crimes Act1900, ss 61M(2) (rep) and 66C(3) — child sex offences — judge correct to conclude photographs of penis not admissible for comparison with complainant’s drawings of same — any probative value of evidence outweighed by unfair prejudice — R v Denton [2019] NSWCCA 81

15/05/2019 — Sentencing — Crimes Act1900, s 61J(1) — aggravated sexual intercourse without consent — no error in description of objective seriousness of offence — determining objective seriousness by reference to a point on a spectrum of culpability not a necessary component of sentencing task — Criminal Appeal Act 1912, s 5D — Crown appeal — sentence manifestly inadequate — appropriate to intervene because sentence did not address sentencing principles, gravity of offending or physical and psychological impact on complainant — R v DP [2019] NSWCCA 55

18/04/2019 — Sentencing — Criminal Code (Cth), ss 474.26 — use carriage service to procure person under 16 for sexual activity — manifestly excessive sentence failed to reflect applicant’s youth and immaturity which materially contributed to offending — observations concerning Crown’s reliance on comparative cases with significant distinguishing features — Clarke-Jeffries v R [2019] NSWCCA 56

21/03/2019 — Appeals — proviso — erroneous jury direction given in relation to complainant’s lies — complainant’s credibility and reliability central issue at trial — appellate court erred in applying proviso — misdirection cannot be assumed to have had no effect upon jury’s verdict —misdirection effectively precluded jury from adopting a reasoning process open and favourable to appellant — OKS v State of Western Australia [2019] HCA 10

23/01/2019 — Criminal Procedure Act 1986, ss 298, 299B, 299D — sexual assault communications privilege — judge not precluded from exercising independent discretion when determining whether to grant access to protected confidence documents where another judge previously granted leave for subpoena to produce — judge required to consider s 299D when determining whether access should be granted — satisfying conditions in s 299B(3) necessary, but not sufficient, requirement for access — PPC v Stylianou [2018] NSWCCA 300

15/01/2019 — Evidence Act 1995, ss 97 , 101(2) — tendency evidence — child sexual assault offences — judge erred by relying on dissenting reasons in CCA judgment of McPhillamy v R [2017] NSWCCA 130 when High Court judgment reserved — judge should have applied principles in Hughes v The Queen (2017) 92 ALJR 52 and other decided cases — incorrect to conclude probative value of evidence outweighed by prejudicial effect — appropriate directions could address prejudice — DPP (NSW) v RDT [2018] NSWCCA 293

11/01/2019 — Sentencing — Crimes Act 1900, s 66C — aggravated sexual intercourse with child between 10 and 14 — under authority — victim 12 years old — applicant 21-year-old babysitter — judge’s findings regarding objective seriousness of offences not reasonably open — aggravating circumstance had to be analysed in context of range of aggravating circumstances prescribed by s 66C(5) — Dawkins v R [2018] NSWCCA 27

14/11/2018 — Evidence Act 1995, s 97(1)(b) — tendency evidence — historical sexual offences — majority of NSW CCA erred by finding evidence of prior sexual offending against different complainants committed a decade earlier admissible as tendency evidence — evidence did not meet threshold requirement of significant probative value in s 97(1)(b) — features of previous conduct and present offending insufficient to link two together — McPhillamy v The Queen [2018] HCA 52

31/10/2018 — Evidence Act1929 (SA), s 34P(2) — context evidence — historical child sexual assault — SA Court of Appeal correct to conclude evidence of uncharged acts to explain otherwise implausible aspects of complainant’s evidence admissible — probative value of evidence substantially outweighed any prejudicial effect on appellant — directions adequately explained use jury could make of context evidence — no substantial miscarriage of justice — Johnson v The Queen (2018) 92 ALJR 1018; [2018] HCA 48

14/08/2018 — Court Suppression and Non-publication Orders Act 2010, ss 8, 14 — appeal against revocation of interim non-publication order — judge did not err in approach to determining whether order in the public interest — accurate reporting of sexual assault trial shows applicant not criminally involved — no prospect of applicant being humiliated or embarrassed by publication — legislation does not operate to prevent mere discomfit to witness — Qiangdong Liu v Fairfax Media Publications Pty Ltd [2018] NSWCCA 159

30/10/2018 — Directions — miscarriage of justice occasioned by judge’s directions responding to jury question about counsel’s questioning of complainant — directions erroneously left jury in a position to assess appellant’s credibility on basis of their determination of a false issue — capacity of jury to fairly and properly assess appellant’s credibility seriously impaired — Llewellyn v R [2011] NSWCCA 66

01/10/2018 — Directions — historical indecent assault — judge erred by addressing matters associated with complainant’s credibility in a way contrary to agreement between parties as to conduct of trial — directions suggested jury need not consider reasonable possibilities put by defence arising from evidence in trial — re-direction did not cure error — SY v R [2018] NSWCCA 6

18/10/2018 — Evidence — Criminal Procedure Act 2009 (Vic), s 381(1) — admissibility of complainant’s recorded evidence from previous trial — Victorian provision broadly similar to s 306I, Criminal Procedure Act 1986 — Victorian Court of Appeal’s approach to determining question of complainant’s willingness to give evidence incorrect — this determination a question of degree to be determined by reference to other factors in s 381(1) — Court erred by concluding evidence of complaint not admissible as a previous representation within Evidence Act 2008 (Vic), s 66 (identical to Evidence Act 1995, s 66) because not fresh in the memory — further error to conclude probative value of evidence of complaint outweighed by danger of unfair prejudice under Evidence Act, s 137 (identical to Evidence Act 1995, s 137) — The Queen v Dennis Bauer (a pseudonym) (2018) 92 ALJR 846; [2018] HCA 40

26/09/2018 — Directions — Evidence Act 2008 (Vic), ss 97, 135, 137 (identical to Evidence Act 1995, ss 97, 135, 137) — tendency evidence — multiple sexual offences committed against single complainant — suggested jury directions in single complainant sexual offence cases where evidence of uncharged acts admitted as tendency evidence — judge should not ordinarily direct jury they may only act on evidence of uncharged acts if satisfied they are proved beyond reasonable doubt — NSW practice of directing in these terms should not continue — The Queen v Dennis Bauer (a pseudonym) (2018) 92 ALJR 846; [2018] HCA 40

20/08/2018 — Sentencing — multiple child sex offences — judge indicated same term for numerous offences — no error in assessment of objective seriousness of each offence — judge adopted discriminating rather than “broad-brush” approach — little variation in objective seriousness for many of the offences — no requirement for judge to rank offences according to scale of seriousness — Rampe v R [2018] NSWCCA 163

05/07/2018 — Evidence Act 1995, ss 97, 100(1), 192(2) — tendency evidence — application to dispense with notice requirements — judge erred by treating lack of sufficient explanation for non-compliance as mandatory and determinative of application — additional error to treat perceived need to correct Crown’s systemic non-compliance as relevant to “interests of justice” — failure to refer to matters relevant under s 192(2) — R v AC [2018] NSWCCA 130

3/07/2018 — Crimes Act 1900, ss 66EB, 66C(1) — procure child for unlawful sexual activity — father arranged marriage of 12-year old daughter — judge did not err by finding “procure” in s 66EB(2) means “to cause or bring about” — sentencing — sentence not excessive given very serious nature of offending — fact applicant motivated by religious beliefs rather than sexual gratification did not ameliorate sentence — ZA v R [2018] NSWCCA 116

24/06/2018 — Procedure — judge-alone trial — adequacy of reasons — Criminal Law Consolidation Act 1935 (SA), s 50 — persistent sexual exploitation of a child — judge’s reasons sufficiently identified and disclosed basis for concluding two or more acts of sexual exploitation proved — adequacy of reasons depends on issues in particular case — DL v The Queen (2018) 92 ALJR 636; [2018] HCA 26

20/06/2018 — Sentencing — Crimes Act 1900, ss 91G, 91K(3), 91L(3) — voyeurism offences — eight victims aged 12 to 16 years — offences committed over 7-year period — aggregate sentence of 6 years not manifestly excessive — offences involved serious violation of privacy — fact victims unaware of filming, images not published, and no physical contact involved did not reduce seriousness of offences — objective gravity not assessed by absence of features which would elevate offence to different category of seriousness or different type of offence — TM v R [2018] NSWCCA 88

13/06/2018 — Sentencing — Crimes Act 1900, s 66A — sexual intercourse with child under 10 — juvenile offender — judge erred by finding Crown‘s concession, that alternative to full-time custody was within range, was “contrary to sentencing principle” — serious sexual offending by young children does not necessarily result in full-time custody — additional error for judge not to consider alternatives to full-time custody — Campbell v R [2018] NSWCCA 87

7/06/2018 — Evidence Act 1995, ss 97, 101 — tendency evidence — judge did not err by ruling tendency evidence admissible and refusing separate trial application — possibility of concoction or contamination relevant in determining whether evidence has significant probative value — observations by Button J in GM v R [2016] NSWCCA 78 that NSWCCA jurisprudence continues to apply approved — test remains whether there are competing inferences that deprive the evidence of significant probative value — BM v R [2017] NSWCCA 253

31/05/2018 — Offences — Criminal Code (Cth), ss 473.1, 474.19 — meaning of “child pornography material” — judge correct not to direct jury that verdicts of acquittal should be entered — appellant’s communications drafted in future tense fell within scope of definition in s 473.1 — definition and offence provisions extend to descriptions of past, present and future sexual activity — Innes v R [2018] NSWCCA 90

25/05/2018 — Evidence Act 1995, ss 55, 137 — context evidence — no error in judge’s finding that evidence of one uncharged act was relevant to fact in issue — a single act is capable of, but faces higher hurdle in, meeting test for relevance as context evidence — no error in application of s 137 — evidence was of significant probative value — risk of tendency reasoning was only danger of unfair prejudice and could be addressed by jury directions — CA v R [2017] NSWCCA 324

6/05/2018 — Criminal Procedure Act 1986, ss 298(1), 299B, 299D — sexual assault communications privilege — judge erroneously found power to order production of documents under s 299B irrelevant — finding that documents sought did not have “substantial probative value” nonetheless correct — Rohan v R [2018] NSWCCA 89

29/04/2019 — Sentence appeal — Crimes Act 1900, ss 61J, 66C, 66EB — child sexual assault — procure child for sexual activity — offences committed against applicant’s daughter by partner — no error in assessment of objective criminality of offences — fact offending arose from joint criminal enterprise limited conclusions which could be reached about applicant’s involvement — no error to conclude removing applicant’s children from her care did not amount to extra-curial punishment — mere fact sentence for procuring offence highest imposed cannot establish manifest excess — RH v R [2019] NSWCCA 64

28/03/2018 — Crimes Act 1900, s 91D(1)(b) — participate as client in act of child prostitution — factors relevant to assessment of objective seriousness discussed — judge erred by finding offending below mid “and possibly towards lower end” of range of seriousness — type of sexual service provided relevant to objective seriousness given broad definition under s 91C — aggregate sentence manifestly inadequate — R v Darwich [2018] NSWCCA 46

07/03/2018 — Crimes Act 1900, s 61D (rep) — historical sexual intercourse without consent — Crown case presented on basis appellant reckless as to consent — not unreasonable for jury to conclude Crown had proved appellant was reckless about whether complainant consented — complainant’s age and sexual ignorance relevant to question of consent — judge’s directions correctly identified how consent to be proved — Morgan v R [2017] NSWCCA 269

29/01/2018 — Sentencing — Crimes Act 1900, ss 73, 76 (both rep) — historical child sex offences — judge did not allow own memory of historical sentencing patterns and practices to dictate sentences — doubtful whether “judicial memory” should be used to establish historical sentencing patterns — settled propositions about changes in sentencing practices for child sexual assault offences — MC v R [2017] NSWCCA 316

29/01/2018 — Sentencing — Criminal Code (Cth), ss 272.8(2), 272.9(2) — sex offences against children outside Australia — relevant sentencing factors and principles — judge erred in approach to totality — overall sentence failed to reflect harm done to each child — when applying totality principle where separate victims involved, temporal proximity of offences not determinative — DPP (Cth) v Beattie [2017] NSWCCA 301

16/01/2018 — Directions — Evidence Act 1995, s 165B — forensic disadvantage resulting from delay in complaint — Crimes Act 1900, s 66A — sexual intercourse with person under 10 — judge did not err by failing to warn jury about consequences of delay — “significant forensic disadvantage” in s 165B requires examination of consequences of delay not its extent — lack of DNA evidence caused by delay not usually evidence within s 165B(2) — Binns v R [2017] NSWCCA 280

11/01/2018 — Crimes Act 1900, ss 91FB, 91G(1), 91H(2) — child pornography offences — “private parts” in s 91FB refers to unclothed genitals and breasts with a visible degree of sexual development — extended definition in s 91I does not apply to s 91FB — judge not required to make express findings as to objective seriousness of each offence — Turner v R [2017] NSWCCA 304

30/09/2015 — Criminal Appeal Act, s 5F(3AA(c)) — Criminal Procedure Act 1986, ss 296 , 299B — sexual assault communications privilege — “counselling communication” in s 296(1) must involve counselling provided by a counsellor — onus is on person asserting the privilege to show communication privileged — documents in this case were not “counselling communications” within s 296 — focused and specific evidence required to ground claim for privilege — statements by judge explaining each ruling in relation to the privilege were sufficient having regard to the circumstances — ER v Khan [2015] NSWCCA 230

Legislation

23/10/2019 — Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth) — amends Criminal Code (Cth) — repeals and replaces definition of forced marriage, and defence of marriage for child sex offences — creates new offences including possession of child-like sex doll and possession of child abuse material obtained using a carriage service — redefines ‘child pornography material’ as ‘child abuse material’ — commenced 21 September 2019, except Sch 1 (s 2)

27/09/2019 — Justice Legislation Amendment Act 2019 — amends Crimes Act 1900, s 80AF to clarify the position where uncertainty exists about time when sexual offence against child occurred

07/06/2019 — Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth) — amends Criminal Code (Cth) — inserts new Div 474, Subdiv H “Offences relating to use of carriage service for sharing of abhorrent violent material” — creates new offences under ss 474.33 and 474.34 for ISPs, or content or hosting services of failing to notify AFP of, or failing to remove, abhorrent violent material — maximum penalty for ISP or internet content host failing to notify AFP of child pornography under s 474.25 increased — commenced on 6 April 2019

03/06/2019 — Justice Legislation Amendment Act (No 3) 2018 — amends Crimes Act 1900 — adds new aggravating circumstance to aggravated sexual assault in s 61J — amends Criminal Procedure Act 1986 to enable expert evidence to be given concurrently or consecutively — new provisions and offences with respect to sensitive evidence — amends various Acts to increase maximum judicial retirement age to 75 years — commenced on 28 November 2018 (s 2, see LW 26 November 2018) except relevantly 1.4 [1] and [4], 1.17 [1] and [4] which commence on proclamation — Sch 1.11 [1] and [2] commenced 17 December 2018 — Sch 1.20 commenced 28 February 2019 — Sch 1.2 [1]–[3] commenced on 31 May 2019 (s 2, LW 31.05.19)

15/05/2019 — Crimes Legislation Amendment (Victims) Act2018 — amends Crimes (Sentencing Procedure) Act1999 — repeals and replaces Pt 3, Div 2 relating to victim impact statements (VIS) — extends VIS provisions to additional victims— introduces right for all victims to have support person present when reading VIS — new provisions related to VIS in mental health and cognitive impairment forensic proceedings — these amendments commenced on proclamation on 27 May 2019 (s 2, LW 24.05.19) — remaining amendments under Act commenced 1 December 2018 (s 2, LW 28.11.18)

30/11/2018 — Crimes Legislation Amendment (Victims) Act 2018 — amends Children (Criminal Proceedings) Act 1987 — introduces new procedures for determining applications by prosecution for child sexual assault offences to be dealt with according to law — amends Criminal Procedure Act 1986 to extend protections associated with giving evidence to additional witnesses — amends Crimes (Domestic and Personal Violence Act) 2007 to require certain AVO proceedings be closed to the public — these amendments commenced on 1 December 2018 (s 2(2), LW 28.11.18) — balance of amendments commence on proclamation (s 2(1))

30/11/2018 — Justice Legislation Amendment Act (No 3) 2018 — amends Crimes Act1900 — adds new aggravating circumstance to aggravated sexual assault in s 61J — amends Criminal Procedure Act 1986 to enable expert evidence to be given concurrently or consecutively — new provisions and offences with respect to sensitive evidence — commenced on 28 November 2018 (s 2, see LW 26 November 2018) except relevantly Sch 1.2 [1]–[3], 1.4 [1] and [4], 1.17 [1] and [4], 1.20 which commence on proclamation — Sch 1.11 [1] and [2] commence on 17 December 2018

30/11/2018 — Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, certain provisions, commenced on 1 December 2018 (LW 30.11.2018) — these provisions restructure and modernise sexual offences in Crimes Act1900, Pt 3, Div 10 — new s 80AF permits prosecution when there is uncertainty about when child sexual offence occurred — the new consent provision, s 61HE, expands the definition of consent to “sexual activity” which includes sexual intercourse, sexual touching or a sexual act (s 61HE(11)) and applies to offences under ss 61I, 61J, 61JA, 61KC, 61KD, 61KE and 61KF: s 61HE(1) and it is no longer limited, as previously, to “sexual intercourse” — the existing consent provision, s 61HA, is repealed — new s 80AG is inserted and is aimed at decriminalising certain acts engaged in by children for offences against ss 66C(3), 66DB, 66DD, 73 or 73A if the alleged victim is of or above 14 years old and the age difference between the alleged victim and the accused is no more than 2 years — new s 293A is inserted into the Criminal Procedure Act1986 to enable judges to give jury directions to address difference in accounts given by complainant

[6-050] Other publications

Judicial Officers’ Bulletin

  • P Mizzi, “Balancing prosecution with the right to a fair trial: the child sexual abuse reforms in NSW” (2019) 31(2) JOB 11

  • P Mizzi, “The sentencing reforms — balancing causes and consequences of offending with community safety” (2018) 30(8) JOB 73

  • I Nash, “Use of sexual assault communications privilege in sexual assault trials” (2015) 27(3) JOB 21

  • P McClellan, “Adults surviving child abuse: the work of the Royal Commission” (2014) 26(11) JOB 95

  • RA Hulme, “After Muldrock — sentencing for standard non-parole period offences in NSW” (2012) 24(10) JOB 81

  • M Ierace SC, “Judge-alone trials” (2012) 24(9) JOB 73

  • H Donnelly, “Assessing harm to the victim in sentencing proceedings” (2012) 24(6) JOB 45

  • H Donnelly, “The diminished role of standard non-parole periods” (2012) 24(1) JOB 1

  • P van de Zandt, “The sexual assault communications privilege” (2011) 23(11) JOB 100

Criminal Trial Courts Bench BookSpecial Bulletin 30 — relationship evidence in sexual assault cases — Norman v R [2012] NSWCCA 230 — SKA v R [2012] NSWCCA 205 — recent law item (posted 23/11/2012)

NSW Bureau of Crime Statistics & Research (BOCSAR)Offenders sentenced to prison in 2010 for child sex offences (see child_sex_offences_imprisonment), 2014

NSW Bureau of Crime Statistics & Research (BOCSAR)The progress of sexual offences through the NSW criminal justice system, 2017

NSW Bureau of Crime Statistics & Research (BOCSAR)Sentencing snapshot: sexual assault, 2009–2010 — Bureau Brief, Issue Paper 72, 2011 (revised January 2012)

NSW Bureau of Crime Statistics & Research (BOCSAR)Sentencing snapshot: child sexual assault, 2009–2010 — Bureau Brief, Issue Paper 68, 2011 (revised January 2012)

NSW Bureau of Crime Statistics & Research (BOCSAR)Re-offending in NSW, Bureau Brief, Issue Paper No 56, 2011 (revised January 2012)recent law item (posted 20/5/2011)

NSW Bureau of Crime Statistics & Research (BOCSAR)Does the Custody-based Intensive Treatment (CUBIT) program for sex offenders reduce re-offending? — Evaluation Report, Number 193, 2016

Protective custody — paper by Domenic Pezzano, Superintendent Operations Branch, Corrective Services NSW — “Information for the ODPP/Courts on options for inmates who request Protective Custody: Limited Association and Non-Association” (revised December 2010) — procedure when inmate placed in protective custody — what placement options are available for inmates and what security ratings are required for specific Correctional Centres — what programs are available for inmates in protective custody — recent law item (posted 25/3/2011)

[6-100] Government reviews and papers

Consent in relation to sexual offences

The NSW Law Reform Commission was asked by the Attorney General to review s 61HE of the Crimes Act 1900 (NSW), which deals with consent in relation to sexual offences. The Law Reform Commission have now published some preliminary submissions in response to the terms of reference. These can be accessed at https://lawreform.justice.nsw.gov.au/Pages/lrc/lrc_current_projects/Consent/Preliminary-submissions.aspx.

NSW Sexual Assault Strategy 2018-2021

The NSW Government released their NSW Sexual Assault Strategy 2018-2021 in July 2018. The strategy is a comprehensive framework to improve prevention and response to sexual assault and delivers a three year, whole-of-government approach to sexual assault in NSW for the first time.

The Strategy aims to improve the existing service system for adults and children who experience sexual assault, while holding perpetrators to account. It also seeks to raise community awareness of sexual violence while improving prevention and education measures in families and the wider community.

Final Report of the Joint Select Committee on Sentencing of Child Sexual Assault Offenders

In September 2017, the NSW Government prepared a discussion paper that identified issues and posed questions about possible options for child sexual abuse law reform. The paper considered the recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse in its Criminal Justice Report, released in August 2017, and the recommendations of the NSW Parliament’s Joint Select Committee on Sentencing of Child Sexual Assault Offenders: see Final Report of the Joint Select Committee on Sentencing of Child Sexual Assault Offenders at https://www.parliament.nsw.gov.au/committees/DBAssets/InquiryReport/ReportAcrobat/5741/Final%20Report%20of%20the%20Joint%20Select%20Committee%20on%20Sent.PDF. The purpose of the discussion paper is to examine child sexual offences in NSW to simplify the current framework, revise current offences and identify whether any new offences should be created to fill any gaps in the existing framework. See Discussion paper: Strengthening child sexual abuse laws in NSW at www.justice.nsw.gov.au/justicepolicy/Documents/strengthening-child-sexual-abuse-laws.pdf